305 Mass. 362 | Mass. | 1940
The parties executed a written agreement under seal on August 10, 1938, by the terms of which the plaintiffs agreed to sink a well on the defendant’s premises at some point to be mutually agreed upon, and the defendant agreed to pay for the work at the rate of $4 per foot, and "also to furnish and water.” The only other provisions of the contract were that the well should be started with a drive pipe of a certain diameter; that it should be driven from the ground surface to ledge or bed rock and then should be continued into the rock until water was found, to a depth dictated by the defendant, limited, however, to a total depth of five hundred feet; that if it was necessary to reduce the size of the hole or to recase it, the plaintiffs should do this without extra cost to the defendant; and that a five-hour pumping test would be made at the expense of the plaintiffs.
Ledge was encountered at a depth of about seventy-eight feet, and the total depth drilled was two hundred twenty-five feet, at which point, apparently, salt water was struck.
After the charge, the trial judge submitted the following question to the jury: “Did Mr. Harry V. Harris make the representations to Mr. Lynch as testified to by Mr. Lynch and his secretary?” The jury’s answer to this question was:
The issue upon which the case was tried was that of fraud; no other issue has been argued, and no other question is considered. The defendant does not attempt to vary by paroi evidence the sealed instrument that it signed. Actionable fraudulent misrepresentations are not so merged in a written instrument procured by their means that they may not be made the basis of a suit to set aside or rescind the written instrument, Weeks v. Currier, 172 Mass. 53, 55; Bates v. Cashman, 230 Mass. 167, 168, or the basis of a defence to an action brought on the instrument.
The test to be applied in the case at bar to determine whether the defendant is to be relieved of its contract by reason of any alleged fraudulent misrepresentations is the same as that applied in actions of tort for deceit. In Chatham, Furnace Co. v. Moffatt, 147 Mass. 403, it was said at page 404: “It is well settled in this Commonwealth that the charge of fraudulent intent, in an action for deceit, may be maintained by proof of a statement made, as of the party’s own knowledge, which is false, provided the thing stated is not merely a matter of opinion, estimate, or judgment, but is susceptible of actual knowledge; and in such case it is not necessary to make any further proof of an actual intent to deceive. The fraud consists in stating that the party knows the thing to exist, when he does not know it to exist; and if he does not know it to exist, he
Applying these general principles to the facts in the case at bar, we are of opinion that there was no error. Representations that were made related to a matter not then susceptible of actual knowledge. Even if we assume that the purpose to be accomplished by the plaintiffs was to provide a well of fresh water for the defendant, at the time of the alleged conversation the defendant’s representative must have known that no one could tell whether fresh or salt water would be encountered without doing the very work that was the subject matter of the contract between the parties or work of that same nature. The representations must be held to have been, at most, expressions of an opinion concerning the ground conditions, and the defendant’s representative must have so understood them and must have known that Harris was doing nothing more than expressing his belief, or what purported to be his belief, concerning those conditions. See Ernest F. Carlson Co. v. Fred T. Ley & Co. Inc. 269 Mass. 272, 278. The person to whom the representation is addressed is bound by what is apparent from the subject matter under discussion, and where one makes a statement as of his own knowledge relative to the subject matter, not susceptible of actual knowl
The case is distinguishable from Chatham Furnace Co. v. Moffatt, 147 Mass. 403. There the material question was whether a mass of iron ore “which did in truth exist under ground” was within the boundaries of the land included in the defendant’s lease, and the material part of the defendant’s statement was, that it was in his ore bed. During the negotiations, the defendant exhibited to the plaintiff a plan of the survey of the mine which had been made for him, and, in the making of which, the surveyor, to the defendant’s knowledge and assent, did not take the course of the first line leading from the shaft through which the mine was entered but assumed it to be due north, and the defendant never took any means to verify this line. In point of fact, this line did not run due north. If it had, the survey would have shown the mass of ore in question to have been within the bounds of the land covered by the defendant’s lease. But because of this erroneous assumption, the survey was misleading, the iron ore being in fact outside these boundaries. “It thus appears that the defendant
The rule applied in the case at bar, relating to a representation as to a fact not susceptible of actual knowledge, is more clearly understood if the standpoint of the one to whom the statement is made is considered. That is, when he hears such a statement the rule in effect leaves him in this position: that regardless of what has been said about the matter, or of how strongly the statement has been put, he knows that the speaker cannot actually know what the fact of the matter is, and that, therefore, he is not justified in relying on what can, in its nature, be nothing more than the opinion, however strong, of the speaker on the matter. Our rule finds other support. Gordon v. Butler, 105 U. S. 553, 556-557. Tuck v. Downing, 76 Ill. 71, 95. Crocker v. Manley, 164 Ill. 282, 289-290. Holbrook v. Connor, 60 Maine, 578, 580-581. Watts v. Cummins, 59 Penn. St. 84, 89.
Judgment for plaintiffs on the verdict.
There was uncontradicted evidence that, when it was discovered that the water was salty, further digging was abandoned on advice of the plaintiff Harris. — Reporter.
The defendant’s answer contained the following: "... the defendant says that if it did sign the contract contained in the plaintiffs' declaration, it was induced by the fraud and false representations made to it by the plaintiffs.” — Reporter.